Dec 12, 2011 12:00 AM EST

Jennie McCormack was arrested for terminating her pregnancy with an abortion pill. The case that could transform the reproduction wars.

The last thing on Jennie Linn McCormack’s mind when she realized she was pregnant was that she might, with a single telephone call, upend the vitriolic national debate on abortion.

All she thought about was how it would be impossible for her to take care of another baby. Surviving, barely, on the $250 of monthly child support for one of her three kids, the unemployed, unmarried 32-year-old also knew she didn’t have the more than $500 she’d need for the two-and-a-half-hour trip from her bare-bones rental in Pocatello, Idaho, to Salt Lake City, the closest city with a clinic willing to terminate a pregnancy. She had no computer, no car, no one to take care of her 2-year-old—and like Idaho, Utah had a waiting period for abortions, which meant she’d have to make two round trips. So early this past January, she made the call that may alter history and turn Jennie McCormack into Jane Roe’s unlikely successor: she asked her sister inMississippi to buy RU-486, the so-called abortion pill, over the Internet and send it to her. The cost: about $200.

“My mind just kept going back to my kids, how there was no way I could do that to them, no way I could make their lives even worse,” says McCormack, a petite blonde, as she nearly sinks between the cushions of her sofa, her eyes rimmed with tears. The man who had impregnated her had just been sent to jail for robbery; she did not feel comfortable reaching out to her mother—Mormon, like almost everyone in southeastern Idaho—for help.

McCormack, who thought she was about 12 weeks along, took the pills (the protocol involves two drugs, mifepristone and misoprostol) the afternoon they arrived. The drugs are FDA-approved only for ending early-stage pregnancies; McCormack had no complications, but the pregnancy turned out to be more advanced than she thought—perhaps between 18 and 21 weeks, experts later speculated—and the size of the fetus scared her. She didn’t know what to do—“I was paralyzed,” she says—so she put it in a box on her porch, and, terrified, called a friend. That friend then called his sister, who reported McCormack to the police.

Although RU-486 is legal and the fetus was not yet “viable” (that is, old enough to live outside the uterus), Idaho has a 1972 law—never before enforced—making it a crime punishable by five years in prison for a woman to induce her own abortion. The day after police arrested McCormack, her mug shot appeared above the fold in the local newspaper. “It’s hard to imagine the humiliation and fear,” says her lawyer, Richard Hearn, who is also a physician.

The case was dropped weeks later due to lack of evidence. Without solid proof, such as the envelope in which the pills came, her confession wasn’t enough to sustain the case. But prosecutors retained the right to re-file charges. In response, Hearn got a federal injunction to prevent any woman from being prosecuted under the state’s anti-abortion statute by the district attorney. He also filed a class-action suit against the state, claiming the statute is unconstitutional. But all that took nine months to play out, and McCormack lurched into depression and became a virtual shut-in.

“You’d have to know the climate here,” says Hearn, “to fully imagine the amount of pressure Jennie is under, how hostile people can be, how isolated she is.” Next week, motions will be heard in federal court to certify the suit as a class action. Last week, the prosecutor filed a motion to have Hearn’s injunction lifted. (The prosecutor’s office did not return calls seeking comment.)

The case has become a huge tangle for both sides of the abortion battle—state laws that put abortion beyond the reach of poor women are clashing with the global reach of the Internet. With Hearn ready to take his case to the Supreme Court, Jennie Linn McCormack may be above the fold for years to come.

“It’s a profoundly important case,” says Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania. “But it’s one that neither the pro-choice nor the pro-life people want to deal with. And that’s what makes it so crucial.”

It’s a bad case for both sides. The fact that McCormack kept a 4-month-old fetus frozen in the winter chill on her back porch is the sort of ghoulish image pro-choice activists try to avoid. For pro-life advocates, supporting her arrest would contradict a longstanding policy of targeting providers while holding women blameless. “It would require a massive change in direction if the anti-abortion movement now supported the criminal prosecution of women directly, which is why McCormack is troubling,” says Cynthia Gorney, a formerWashington Post reporter and the author of Articles of Faith: A Frontline History of the Abortion Wars. “It would violate everything they built the movement on.”

Neither right-to-life groups nor pro-choice organizations like Planned Parenthood and NARAL Pro-Choice America—usually quick to publicize such human stories as ammunition for their cause—have made public statements on McCormack’s case, and numerous calls to spokespeople on both sides of the issues went unreturned.

“McCormack puts them places that complicate the storyline. It’s the new frontier,” says Gorney, now a journalism professor. “Once you remove the providers, you have no one to picket or pressure. Abortifacient drugs and the Internet change the debate forever. ”

Despite the reticence of pro-choice groups to take up McCormack’s cause, it is exactly what they have been warning of for years: as clinics become inaccessible, poor women are more likely to take abortion into their own hands. In the era before Roe v. Wade, that meant back-room abortions; now it conjures images of a lonely woman in a small town at her keyboard Googling “abortion pill.” Hundreds of online merchants will send RU-486 without a prescription, according to Women on Web, an organization that sends the drugs to women in countries where abortion is illegal.

No one knows how many women in the U.S. have gotten the drugs this way, says Daniel Grossman, a physician who is a senior associate at Ibis Reproductive Health, a research and advocacy group in Cambridge, Mass. “[But] if women were not accessing them, these sites would not be proliferating.” Although the number of abortions nationally has dropped slightly in recent years, some 35 percent of American women will have one at some point in their lives.

The proliferation of sites providing the drugs coincides with the pro-life movement’s highly effective protests and attacks on physicians, clinics, and health-care groups that offer abortions. The number of Planned Parenthood affiliates has been cut in half since 1987, to fewer than 100. Almost 90 percent of counties in the U.S. and 98 percent of rural counties have no abortion services. Many clinics in states where local physicians are pressured not to perform abortions now fly in doctors from out of state to provide abortions, says Melanie Zurek, the executive director of the Abortion Access Project, a Boston-based group that offers training and support to doctors and health organizations.

While Medicaid coverage for abortions has long been outlawed, more than a dozen states now restrict private-insurance coverage of abortion. Texas cut funding for clinics that provide birth control, even if they don’t provide abortion services. A South Dakota bill that would have made women wait 72 hours before getting abortions was recently blocked by a federal judge. A bill in Ohio would ban abortion after a fetal heartbeat is detected, as early as six weeks after conception. In November, Mississippi voters narrowly rejected a referendum that would have defined “personhood” at the time of conception, a notion that would have made even certain types of birth control illegal. Legal scholars on both sides agree that such laws wouldn’t survive a constitutional challenge as long as Roe v. Wade stands. Which is precisely why some pro-life groups are championing them: their goal is to provoke challenges that go to the Supreme Court, which will, in their fever dream, strike Roe down.

This is, of course, the pro-choice movement’s greatest fear. Spooked by the recent strong challenge in Congress to federal funding for Planned Parenthood, pro-choicers are wary about mounting legal challenges to state restrictions, for fear those challenges would end up in front of an inhospitable Supreme Court.

For the clinics that remain, the use of abortion drugs, which require no equipment and far less training for physicians than surgical options, has quietly risen. More than 20 percent of all abortions in the U.S. are now “medical” abortions, according to the Guttmacher Institute, a nonprofit, nonpartisan research group. The drugs are more than 95 percent effective in ending pregnancies up until seven weeks, according to the FDA, and are considered the best method for ending very early pregnancies.

Later-term abortions like McCormack’s, even those done in a clinic, are the Achilles’ heel of the pro-choice movement. Although only 1 percent of abortions in the U.S. are done after 21 weeks (about 88 percent are performed within 12 weeks), anti-abortion advocates have made such procedures their prime target. Since the Supreme Court in 2007 upheld states’ rights to regulate late-term abortions, more than 35 states now have strengthened their prohibitions on clinics that performed the procedure.

Hearn, McCormack’s lawyer, is less wary about challenging statutes—and undaunted by the lack of public support from either camp. The pro-choice lobby “may not think this is a good time to bring something to the court because it’s so conservative,” he says, “but I say no case is perfect, and if not now, when?”

In addition to his challenge of the Idaho statute criminalizing self-induced abortion, he is targeting the state’s new “fetal pain” law, which is basically a clumsy end-run ban on late-term abortions. (Virtually all research on the subject shows that fetuses cannot distinguish pain until as late as the 30th week of gestation.) Four other states have recently passed similar laws, despite the fact that under Roe, abortions are legal until viability, which is around 25 weeks.

While the arguments fly, McCormack waits quietly in her small, dark apartment. A bedraggled bouquet of silk flowers hangs outside her front door along with a plaque that says “Welcome” in Spanish, French, and German. Even if her suit succeeds, there is no victory for her. She says she has “no friends at all, no one to talk to.” She knows no one who’s had an abortion, or at least no one who will admit it. “My mother, she’s Mormon, you know? She’s a proud person, and this is a terrible thing for her to have to look people in the eye.” After her picture appeared in the paper, McCormack got a part-time job at a dry cleaner, using another name, but people figured out who she was and stopped letting her bag up their clothes, so she quit. On a recent trip to a local state office to apply for aid, she was ignored for hours. “They made it clear what was happening,” she says. “For a while I just sat there, sort of amazed that they were just letting me sit there.” Eventually, she picked up her son and went home.

Even her attempts to bury her fetus have been thwarted. Hearn put in requests to the district attorney to have the remains released from the evidence locker, but no one has responded. “I never wanted to be someone public, to make a point,” McCormack says. “This isn’t a cause for me. I just didn’t know what to do. I did what I thought was right for my kids, that’s all.”

DEAGLÁN de BRÉADÚN, Political Correspondent

MEMBERS OF the medical, legal and nursing professions are to sit on a 14-member expert group being set up to address the outcome of last year’s European Court of Human Rights ruling on abortion rights in Ireland.

Minister for Health James Reilly received approval at yesterday’s Cabinet meeting to establish the group. It will be in place by the end of the year or shortly thereafter and will have six months to deliver a report to Government.

The European Court ruled last December that the State had failed to implement existing rights to lawful abortion where a mother’s life is at risk. The court found the State violated the rights of a woman with cancer who said she was forced to travel abroad to obtain an abortion.

The programme for government pledged to “establish an expert group to address this issue, drawing on appropriate medical and legal expertise with a view to making recommendations to Government”. As required under the procedures of the court, the Government submitted an action plan last June, outlining its intention to set up the expert group.

Also at yesterday’s meeting, Taoiseach Enda Kenny received approval for the establishment of an interdepartmental committee on European engagements as a subcommittee of the Cabinet.

Minister of State for European Affairs Lucinda Creighton is expected to play a prominent role on this committee, which will monitor and co-ordinate the Government’s involvement with EU institutions.

09.19.11 – In May, the U.N. Committee against Torture reviewed the Republic of Ireland’s initial periodic report. The Committee’s concluding observations reiterated the European Court for Human Rights’ concerns expressed in its judgment in the case of A, B, and C v. Ireland , to which the Center for Reproductive Rights, and their partner, submitted a friend-of-the-court brief.
Abortion is banned in Ireland except when a woman’s life is in danger, and the Irish legislature has failed to establish criteria in legislation for when this exception for life-threatening conditions applies. The Committee expressed concerns over Ireland’s lack of effective and accessible procedures to establish “whether some pregnancies pose a real and substantial medical risk to the life of the [pregnant woman].” Furthermore, the Committee found that, legislation being vague, both woman and provider being at risk of criminal repercussions along with the absence of an appeal process, may “raise issues that constitute a breach of the Convention.” The Committee specifically cited concerns for vulnerable populations, such as minors, migrant women, and women living in poverty.
The Committee urged Ireland to adopt a clear legal framework with respect to the scope of legal abortion, and to ensure adequate procedures are in place to challenge differing medical opinions and to provide “adequate services for carrying out abortions” in the state.
The Center welcomes this initiative and urges Ireland to take immediate action to implement the U.N. Committee’s recommendations and expand access to safe and legal abortion.

Across the African continent, from Cairo to Cape Town, women are mobilising for recognition and respect of their sexual and reproductive rights. On February 4th, women’s and health rights advocates in communities throughout Africa will hold forums, dialogues with parliamentarians, participatory community theatre, and outreach programmes in schools and the streets to raise their voices for the recognition and respect of their rights to sexual and reproductive autonomy. Young women are taking leadership positions in the upcoming events, standing shoulder to shoulder with older generations of sexual and reproductive rights advocates, while men are also participating as important allies.

United in their actions as health, women’s, sexual and reproductive rights defenders across the vast African continent, they are calling on the international community to note common concerning trends, including:

* A continued pattern of brutal sexualised violence against women, surrounded by a culture of impunity due to a lack of safe mechanisms for seeking justice and redress;

*Verbal assaults, physical attacks, sexual harassment, death threats and criminal charges directed at those who speak out for legal, safe, accessible abortion, and those who challenge patriarchal cultural and social norms, such as polygamy, child marriage, and female genital mutilation;

* Arrest, torture, rape and murder targeting people who identify as lesbian, gay, bisexual, transgender or intersex (LGBTI), and those who defend the rights of LGBTI communities.

* Continued lack of recognition of the sexual and reproductive needs and rights of diverse populations of marginalised peoples-including those with different abilities, minority ethnic populations, those who identify as LGBTI and sex workers.

*Increased restrictions on access to essential sexual and reproductive health supplies and services, as a result of ideological and religious pressure, conditionalities imposed by international financial institutions, fewer donors willing to fund these services and control by multinational pharmaceutical companies.

Now it is time to seize the opportunity to show your solidarity with women across Africa defending their sexual and reproductive rights!

1. Read the letter below that is addressed to the African Commission on Human and Peoples Rights (ACHPR), the Court(AfCHPR) and Special Rapporteurs. On Friday, deliver this message by fax, email and phone the nearest Tanzanian and Ghanian Embassies to you. Addresses for these embassies can be found online by copying and pasting these links:

2. Continue to organise within your own community for respect for women’s and health rights and for reproductive and sexual justice for all people. If there are Afro-descendants in your community, reflect on whether your work is inclusive of them, open to their leadership and to that of other diverse populations. Collective policy, legislative and community actions to address women’s rights, health rights, sexual rights and reproductive rights from an inclusive, non-oppressive, human rights and social justice approach are important examples for others from around the world to hear and learn about.

3. Join the ongoing vigils and solidarity actions in your community that support of the efforts of sexual and reproductive rights defenders from diverse walks of life in Egypt who have been exerting courageous efforts to win respect for their rights despite severe factors of repression. If greater respect for sexual and reproductive rights is won in policy and practice, it could serve as an example for other parts of the continent.

4. Send us photos of your work and watch the Women’s Global Network for Reproductive Rights website as we post updates from across the African continent where different actions are planned. tanya@wgnrr.org / www.wgnrr.org

Abortion Support Network disappointed by the ruling of the European Court of Human Rights on the challenge to Ireland’s abortion ban

Abortion Support Network is extremely disappointed with today’s ruling of the European Court of Human Rights in relation to the challenge to Ireland’s abortion ban by three women who underwent considerable hardship and trauma by being forced to travel to England in order to access a safe and legal abortion. As an organisation that provides support to women who are forced to make this journey, we know the significant distress, worry and financial burden that women in Ireland are made to bear by being denied an abortion in their own country.

Every year thousands of women are forced to make this journey, and do so under extremely difficult, often desperate, circumstances. They face the struggles of finding the money to pay for the cost of the trip and procedure, of taking time off work, and sometimes the additional costs and difficulties of finding child care. These costs can range from anything between £400 and £2000. Women face the additional burden and stress of maintaining secrecy about their abortion back home. As a result, these women are incredibly isolated and many travel alone.

Abortion Support Network’s Director, Mara Clarke said:

“While we are encouraged by the ruling that woman “C”, who was undergoing chemotherapy when she fell pregnant, had her human rights violated, we are deeply saddened that the Court chose not to recognise the hardships faced by the two other claimants in the case.

The sooner the Irish government rectifies this long-standing injustice, the sooner women will be able to make their own decisions about abortion and make choices that are right for them.

Every week we hear from pregnant women living in Ireland who are in a state of crisis, with no other place to turn. As long as women in the Republic of Ireland do not have access to safe and legal abortions in their home country, Abortion Support Network will offer them immediate, practical support in the form of confidential, non-judgemental information, accommodation and financial help towards the costs of their abortion.

We will also continue to offer our support to women in Northern Ireland, and other countries where women’s rights continue to be violated by the denial of access to safe and legal abortions in their home countries.

We will help women irrespective of circumstance as it is our belief that women are capable of making their own decisions.”

In the words of one of the women that we have supported, a 37 year old mother of three:

“It was a very hard decision and I wouldn’t wish anyone to find themselves in this situation … I felt vulnerable, alone and upset. I felt I could contact ASN, that they cared and they were there to support me while in another country and alone … I will forever feel grateful for the help and support I received.”

On Dec 16th inA, B & C v Irelandthe European Court of Human Rights held that Ireland’s failure to regulate how women can exercise the limited constitutional right to an abortion violates the European Convention. The Court did not extend the right to an abortion any further than the Irish Supreme Court itself had done in 1992 but the release of the judgment has created renewed momentum around the issue. As a general matter, abortion is illegal in Ireland and Article 40.3.3 of the Constitution provides “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right”. That opens up limited exceptions allowing for abortion, the extent of which was decided by the Supreme Court in the tragic circumstances of Attorney General v X in 1992.
X—a teenage girl—had become pregnant as a result of rape and was suicidal. It was decided that she would travel to England for an abortion. Attempts to prevent this culminated in a Supreme Court case. The Court held that the Constitution allows for abortion where there is a “real and substantial risk” to the life (although not the health) of a pregnant woman, including from suicide. Some 18 years later there has been no regulation of this right and we still have no system of determining whether abortion is lawful in particular cases.
The decision handed down today in A, B & C is really quite limited. Unless there is a risk to the life of a pregnant woman there is no right to an abortion in Ireland; rather being permitted to travel for an abortion is enough to satisfy the Convention. However, where there is such a risk to life (and, as a result, there is a constitutional entitlement to an abortion), there must be a coherent legal framework in which entitlement to an abortion can be determined.
Thus, the Court does not extend the right to abortion beyond what had already been recognised within the Irish Constitution itself; neither does it say there is a “human right to abortion”. That should immediately put any claims of ‘European interference’ to bed. In fact, the judgment is extremely respectful of the Irish position and recognises that the extent to which any country allows for an abortion is a matter in which that country is entitled to a significant degree of discretion. That does not mean, however, that the case will not result in controversy in Ireland.
Abortion remains a deeply contentious social issue here. With a general election forthcoming, the case has already reignited the national debate and the question of what any new government might do to respond to it may well become a dominant theme in the campaign. This is especially so because, if Ireland is to comply with the Convention, we now have two choices: either have a constitutional referendum to remove this limited right (or, although unlikely, to extend it) or regulate the right as recognised in the X Case. Either choice will cause social division, although a referendum would in all likelihood create a greater social rupture.
What is abundantly clear now is that the situation cannot reasonably remain as it is. Since 1992 doctors have operated under what the Court called the “chilling effect” of the regulatory vacuum and women whose lives are at risk have found it practically impossible to exercise their constitutional right to elect for a termination. That this situation has persisted for 18 years is an abject failure of Irish politics; if it continues following the General Election it will further reinforce the unwillingness of Irish politicians to finally confront one of Ireland’s most persistent social and legal controversies.

Beyond the Church’s Reach

Fleeing West from Poland’s Restrictive Abortion Laws

An increasing number of Polish women are travelling to Germany for abortions. Even as Poland has modernized and become more European, its laws have failed to keep pace.

Having spent 40 years working as a gynecologist, Janusz R. was pretty sure he’d seen everything his job could throw at him. But recently, he was proven wrong.

A few weeks ago a pretty Polish woman came to see Dr. R. in the hospital in the German town of Prenzlau, not far from the Polish border. She was pregnant, but didn’t want to keep the baby. So far so normal. But the man who accompanied her was much more nervous than the men the doctor was used to seeing.

It wasn’t until after the abortion had been successfully carried out that the patient’s boyfriend became more talkative. “I’m a Catholic priest,” he confessed. He said his church was completely out of touch with the times, that Poland’s abortion legislation didn’t “reflect real life in Poland anymore.” R., who had himself been born in neighboring Poland, had never heard such words from a man of the cloth.

He has, however, heard it repeatedly from his patients. More and more women from Poland come to hospitals in Berlin, Prenzlau, Schwedt and other German towns near the border to have an abortion. R. estimates that about 600 such women have turned up at his offices alone this past year. In 2009, it was 400.

Whereas childless German women are heading east because there are no limits on the number of eggs Polish doctors are permitted to fertilize, implant or freeze, Polish women are fleeing to Germany because the law in their country only permits abortions if the mother’s health is at risk, if the fetus is severely deformed, in cases of incest, or following rape.

No Longer an Agrarian Hinterland

During communism, Poland’s abortion legislation was just as liberal as that of the rest of the Eastern bloc. But after 1989, the Polish parliament enacted one of the most restrictive laws in all of Europe. Many Poles are convinced it’s the government’s way of thanking the Catholic Church. After all, the church sheltered anti-communist opposition activists from the authorities for decades.

When Poland became a democracy in 1990, the country’s bishops wanted free, Catholic Poland to be a God-fearing country in which men and women only shared a bed if they were married and only had sex for the purpose of having babies. Poland, though, lies in the heart of Europe. Its economy is booming and it has long ceased to be the agrarian hinterland that it was just 30 years ago.

The result is that Poland’s abortion law is therefore at odds with the everyday lives of Polish women. More and more of them go to college and want to have a career. Statistics indicate that they are waiting longer and longer before having children. And they want to decide themselves when the time is right to become a mother.

Gynecologist R. studied medicine in the Polish city of Gdansk, emigrated to Sweden, and later came to Germany. He has worked as a medical director in top clinics in Stockholm and in the Ruhr Valley. Although he is retired, he can’t bring himself to hang up his white coat for good. “I love my job, and abortions are a necessary evil,” he says.

The Polish border is only 20 kilometers (12 miles) away, and has in any case been open since Poland adopted the Schengen Agreement in 2007. An abortion can be had in Prenzlau for about €400. The operation is carried out at cost.

Polish women, though, don’t only come to see Dr. R for abortions. Increasingly they want him to deliver their babies or perform regular checkups on their toddlers. Dr. R. offers the kind of gynecological support that still isn’t taken for granted in Poland’s towns and rural areas. In these areas, adolescent girls and women even have difficulties getting the contraceptive pill or other methods of birth control.

Part of a Shady World

“Polish women are much more self-assured than they used to be,” says R. “They bond with men they find sexually attractive, but do not want to marry.” R. has learned that Polish women want the same freedoms as their male compatriots.

Women’s rights activists estimate that as many as 200,000 illegal abortions are carried out in Poland every year. After-hours’ terminations at Polish hospitals, in doctors’ offices or even in private apartments cost about 8,000 zloty, or about €2,000. Gynecologists take out newspaper ads, though these don’t mention their name, just a telephone number. “We offer a full range of services,” runs the typical slogan. Illegal abortions are part of a shady world that everyone knows about, but no one wants to discuss.

Often enough doctors conduct their abortions without either an anesthetist or an assistant in attendance. Sometimes the patients are even required to hold the instruments during the operation. “The doctors are worried they will be discovered, and the women feel ashamed,” R. says. He would prefer them to bring their problems across the border to his hospital.

Dr. R. had four Polish women in his waiting room on one recent morning. He was able to convince one of them to reconsider. The second was due to return a short time later. The third, a 17-year-old schoolgirl, cowered in her bed, still looking a little pale. “All the girls in my class have sex,” she said. “Afterwards they go to confession.”

The fourth patient had come too late: She was already in the 19th week of her pregnancy. In Germany, abortions are only permitted until the 12th week. This patient will probably get back into her car and drive even further west. The Netherlands permit terminations until the 22nd week of gestation.